Citation Nr: 0733825
Decision Date: 10/26/07 Archive Date: 11/07/07
DOCKET NO. 06-15 495 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for the
veteran's cause of death.
WITNESSES AT HEARING ON APPEAL
Appellant and friend
ATTORNEY FOR THE BOARD
T. Adams, Associate Counsel
INTRODUCTION
The veteran had pre-war service from November 1941 to
December 1941; was beleaguered from December 1941 to April
1942; was in prisoner of war (POW) status from April 1942 to
October 1942; was in no casualty status from October 1942 to
November 1942; was in POW status from November 1942 to
February 1943; was in no casualty status from February 1943
to August 1944; and was missing from August 1944 to October
1944.
This case is before the Board of Veterans' Appeals (Board) on
appeal from an April 2005 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Manila,
Republic of the Philippines, that denied the appellant's
application to reopen a previously denied claim for service
connection for the veteran's cause of death. In July 2007,
the appellant testified at a travel board hearing held at the
RO.
FINDINGS OF FACT
1. The claim for service connection for the veteran's cause
of death was previously denied in an April 2003 Board
decision. The RO declined to reopen the claim in September
1988 and April 2001. The appellant did not appeal those
decisions.
2. Evidence submitted since the April 2001 final decision,
does not, by itself or when considered with previous evidence
of the record, relate to an unestablished fact necessary to
substantiate the appellant's claim and does not raise a
reasonable possibility of substantiating this claim.
CONCLUSIONS OF LAW
1. The April 1953 Board decision and the September 1988 and
April 2001 final decisions that respectively denied service
connection for the veteran's cause of death and declined to
reopen the appellant's previously denied claim for service
connection for the veteran's cause of death are final.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a),
3.160(d), 20.302, 20.1100, 20.1100, 20.1103, 20.1104, 20.1105
(2007).
2. New and material evidence has not been received to reopen
a claim for service connection for the veteran's cause of
death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in January 2005 and an
administrative decision in April 2005. These documents
discussed specific evidence, the particular legal
requirements applicable to the claim, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of the claim by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006). Thus, VA has satisfied its duty to notify the
appellant and had satisfied that duty prior to the
adjudication in the February 2006 statement of the case. The
appellant received additional notification in September 2007.
However, the Board finds that issuance of a statement of the
case is not required after the issuance of that notice
letter, because no evidence has been added to the claims file
subsequent to the February 2006 statement of the case.
38 C.F.R. § 19.31 (2007). The appellant received additional
notice in September 2007. The Board finds that issuance of a
supplemental statement of the case is not necessary because
no evidence was received subsequent to the February 2006
statement of the case. 38 C.F.R. § 19.31.
In addition, VA has obtained all relevant, identified, and
available evidence and has notified the appellant of any
evidence that could not be obtained. The Board also finds
that VA is not obligated to obtain a medical opinion in this
case because the evidence does not establish that the veteran
suffered an event, injury, or disease in service. 38 C.F.R.
§ 3.159(c)(4) (2007). Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.
The Board is also aware of the recent decision in Kent v.
Nicholson, 20 Vet. App. 1 (2006) regarding notice
requirements for claims to reopen final decisions. The Board
finds no basis to remand this case to the RO for additional
development. Again, based on the notice already provided to
the appellant cited above, which addresses both the
requirements for reopening the claim for service connection
for the veteran's cause of death as well as the evidence
required by the underlying claim for service connection,
further amended notice to the appellant would not provide a
basis to grant this claim. The Board again observes that the
appellant has made no showing or allegation that the content
of the notice resulted in any prejudice to the appellant.
In an April 1953 decision, the Board denied the appellant's
claim for service connection for the veteran's cause of
death. In final decisions dated in September 1988 and April
2001, the RO found that new and material evidence had not
been submitted to reopen the claim. A finally adjudicated
claim is an application which has been allowed or disallowed
by the agency of original jurisdiction, the action having
become final by the expiration of one year after the date of
notice of an award or disallowance, or by denial on appellate
review, whichever is earlier. 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103, 20.1104
(2007). Thus, the Since the Chairman of the Board did not
order reconsideration of the Board's April 1953 decision, it
became final. 38 C.F.R. § 20.1100 (2007). In addition, the
September 1988 and April 2001 decisions became final because
the appellant did not file a timely appeal.
The claim for entitlement to service connection may be
reopened if new and material evidence is submitted. Manio v.
Derwinski, 1 Vet. App. 140 (1991). The appellant filed this
application to reopen her claim in January 2005. Under the
applicable provisions, new evidence means existing evidence
not previously submitted to agency decision makers. Material
evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate a claim. New
and material evidence can be neither cumulative or redundant
of the evidence of record at the time of the last prior
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156(a) (2007). Only evidence presented since
the last final denial on any basis will be evaluated, in the
context of the entire record. Evans v. Brown, 9 Vet.
App. 273 (1996). In determining whether evidence is new and
material, the credibility of the new evidence is to be
presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
The appellant contends that the veteran was killed in action
against enemy forces in October 1944 while serving as a
member of a Philippine Army or guerilla unit.
The evidence before the Board at the time of the April 1953
decision consisted of service department records; statements
from the appellant; statements from the veteran's fellow
servicemen dated in October 1949 and December 1945; and a
copy of a death certificate dated in July 1950 which lists
the cause of death as killed by guerrillas in October 1944.
The Board found that the veteran's active duty ended in
February 1943, after which he entered into a no casualty and
missing status according to service department records.
Therefore, the Board found that the veteran's death was not
related to his service.
Service department findings are binding on the VA for
purposes of establishing service in the United States Armed
Forces. Dacoron v. Brown, 4 Vet. App. 115 (1993). VA is
prohibited from finding, on any basis other than a service
department document, which VA believes to be authentic and
accurate, or service department verification, that a
particular individual served in the United States Armed
Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). Evidence
from the Philippine Armed Forces and former soldiers cannot
be used by VA to determine a veteran's military status.
The evidence before VA at the time of the September 1988 and
April 2001 final decisions consisted of service department
records; additional copies of the death certificate; and
statements from the appellant. In essence, the RO found that
new and material evidence had not been submitted to reopen a
claim for entitlement to service connection for the veteran's
cause of death.
The evidence submitted to VA after the April 2001 final
decision includes statements from the appellant; additional
copies of the death certificate; August 2005 correspondence
from the National Personnel Records Center which confirms the
veteran's service status between November 1941 and October
1944; and July 2007 testimony before the Board. The new
evidence fails to show that the veteran's death was related
to active service or to a service-connected disability, as
was the case at the time of the previous final decision.
Therefore, the new evidence is not material because it does
not relate to an unestablished fact necessary to substantiate
a claim and does not raise a reasonably possibility of
substantiating the claim.
Based on a thorough review of the record, the Board finds
that the preponderance of evidence is against a finding that
the appellant has submitted new and material evidence since
the April 2001 final decision denying the appellant's
application to reopen a claim for service connection for the
veteran's cause of death.
The copy of the death certificate is not new evidence, and
therefore is not new and material. The testimony before the
Board and appellant's written statements are cumulative of
previous statements by the appellant that were considered at
the time of previous adjudications and therefore are not new
and material. The National Personnel Record Center
verification of service merely confirms the previous
determination without change. Therefore, that document is
also cumulative and is not new and material.
The Board finds that the additional evidence submitted after
the April 2001 decision is not material within the meaning of
38 C.F.R. § 3.156. The additional evidence fails to show
that the veteran's death was related to service or a service-
related disability.
The appellant's lay statements, including testimony at the
personal hearing, are redundant of previously considered
contentions from the appellant and therefore are not new
evidence. Reid v. Derwinski, 2 Vet. App. 312 (1992). The
contentions raised are essentially the same as those
previously made by the veteran to VA. The Board also finds
that they are not material within the meaning of 38 C.F.R.
§ 3.156. As a layperson, the appellant is not competent to
provide an opinion requiring medical knowledge, such as a
diagnosis, or an opinion relating to medical causation and
etiology that requires a clinical examination by a medical
professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Thus, the evidence is not new. Her statements are not
material to the critical issues in this case of whether the
veteran's cause of death is related to his service. Moray v.
Brown, 5 Vet. App. 211 (1993).
Accordingly, the Board find that new and material evidence
has not been submitted, and the claim for entitlement to
service connection for the veteran's cause of death is not
reopened.
ORDER
New and material evidence has not been received and the
petition to reopen a claim for entitlement to service
connection for the veteran's cause of death is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs